Five Lawsuit Myths – The Washington Post

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Suing is supposedly as American as apple pie. The right to a jury trial in trials is enshrined in the Seventh Amendment. And the portrayal of civil lawsuits is at the heart of American popular culture, from the novels of John Grisham to the reality TV courtroom of Judge Judy Sheindlin. But what people learn from civics classes, popular fiction and TV melodramas doesn’t always reflect reality. Here are five myths about civil litigation.

The Americans are too procedural.

Writing for Forbes in 2013, conservative commentator Carrie Lukas lamented, “Americans have been plagued with a culture of litigation for so long that it is difficult to recognize the full weight of its effects.” With McDonald’s infamous hot coffee case as the poster child, a 2016 poll, according to the Wall Street Journal, found that 87% of voters said there were “too many lawsuits being filed in America.” Congressional Republicans Argue that future pandemic relief bills must immunize businesses and healthcare providers “against frivolous lawsuits.”

These notions condemn lawsuits in which a plaintiff seeks a remedy after being seriously harmed by someone else, such as a deep-pocketed corporation. But most lawsuits don’t stem from personal injury claims, like the McDonald’s case. About half civil cases in state courts are contract disputes. Many of them are ordinary cases; a study found that 37% of contract lawsuits are simple debt collection cases and 29% are landlord-tenant disputes, with neither figure suggesting a lawsuit-happy society. Another 16% of civil cases are small claims involving amounts of a few thousand dollars or less. Only 7% involve tort claims, and these mostly stem from common automobile accidents.

And litigation rates have even decreases in recent years, according to the National Center for State Courts. While this decline appears to be leveling off, between 2009 and 2015 the number of civil cases fell at an annual rate of 3.5%.

There are too many lawyers.

In “The lawyer bubble: a profession in crisis“, Steven Harper, former partner of a large law firm discuss the “massive glut of lawyers”. Late Supreme Court Justice Antonin Scalia lamented that “we devote too much of our best minds” to the legal profession because “lawyers, after all, produce nothing”.

But the problem is not that there are too many lawyers; it is that legal services are not adequately distributed to those who need them. The “justice deficit”, according to a 2017 study report by the Legal Services Corporation, “has stretched into a chasm”. According to the LSC, low-income Americans received inadequate or no legal help for 86% of their civil legal problems. At New York, According to a task force created by the Chief Justice of New York State, 93% of parents dealing with child support issues do not have a lawyer. In credit card debt collection cases, the task force found that the scales of justice were dramatically skewed – creditors still had lawyers; only 1% of debtors have done so.

The jury prizes are out of control.

In its latest annual report on “judicial hells”, the American Tort Reform Foundation proclaimed that in Georgia “scandalous nuclear verdicts have become the norm”. A frequent complaint by commercial interests and insurance companies is that there is a “lottery mentality”: not all complainants win, but those who expect to hit the jackpot, such as the $157 million a Florida jury awarded last year to a man in a wrongful death lawsuit against cigarette giants Philip Morris and RJ Reynolds.

Grand jury verdicts get the most publicity, but they are not the norm. From 2010 to 2016, the median jury award in bodily injury claims was $68,189. The civil justice system assigns a key role to the jury as the arbiter of misconduct, but juries are not the last word – verdicts are often limited or overturned by judges, as happened in June when the Missouri Court of Appeals reduced by more than half of Johnson & Johnson’s $4.69 billion jury award for selling cancer-causing baby powder. And juries generally do their job very well. Studies showed that judges, who know the law and are presumably less prone to bias or passion, agree with juries’ decisions at least three-quarters of the time.

You are entitled to your day in court for a breach of contract.

LegalMatch Lawyer Referral Service Explain that when one party breaches a contract, the other “shall have the right to take legal action against the offending party”. The WikiHow website said, “If you have entered into a contract and fulfilled your obligations but cannot get the other party to do the same, you can sue for breach of contract.”

But increasingly, this is not the case for contractual disputes. Many companies are now inserting boilerplate arbitration clauses into their consumer contracts, knowing that customers are unlikely to read them and cannot negotiate them even if they do. These clauses bar consumers from suing and instead require them to resort to arbitration, a private, business-driven dispute resolution system without a judge or jury, with limited discovery of facts and limited rights of appeal. Eighty-one of the Fortune 100 companies – including Amazon, Walmart and Home Depot – include arbitration clauses, as do many financial services companies, vendors and manufacturers. (Amazon CEO Jeff Bezos owns The Washington Post.) Buy something from an online retailer Wayfairand you agree that “all Disputes” shall be settled by arbitration, including a dispute over the scope of the arbitration itself.

Some arbitration clauses prohibit consumers from participating in class action lawsuits, so claims that are individually small but huge in aggregate are never heard. The Supreme Court approved this approach in a case in which plaintiffs tried to sue AT&T for falsely advertising free phones.

Victims of bodily harm can always take legal action.

A staple of lawyer advertising is boasting plaintiffs’ right to “hold the negligent person or company accountable and get the compensation you deserve and need,” according to Morgan & Morgan, which is listed as the nation’s largest personal injury company and is a ubiquitous television advertiser. Nolo.com mutual legal assistance website said“If a person involved in an accident has been less careful than another, the less careful must pay.”

But courts and legislatures have effectively immunized whole classes of wrongdoers. Suppliers of raw materials and components used in medical implants, for example, are protected from suits, just like universities and other non-profit organizations. The estate of a DC sniper victim was rod to use the District of Columbia’s tort law against Bushmaster Firearms because Congress had barred most lawsuits against gun manufacturers (enforcement of this federal law is disputed by relatives of Sandy Hook shooting victims). Recent police killings of black men and women have drawn attention to the doctrine of qualified immunity, under which an officer cannot be prosecuted for an illegal act unless it is a violation of a “clearly established” right, a standard that is difficult to meet; last month, The Supreme Court refused to hear cases challenging the doctrine.

And even when the perpetrators do not have immunity, many victims have unknowingly signed liability waivers. Gina Stelluti was injured when the handlebars of her bike came off during a spinning class, but the The New Jersey Supreme Court held that her lawsuit against the gym and the bike manufacturer was barred because a waiver was among the forms she signed when she joined the gym. President Trump’s campaign even got supporters to sign such waiver ahead of his rally in Tulsa last month, which required no masks or social distancing; to be admitted, participants had to agree to assume the risks of exposure to the coronavirus.

Five Myths is a weekly column that challenges everything you think you know. You can verify previous mythslearn more about Outlook or follow our updates on Facebook and Twitter.

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